试论卢梭的立法思想

法律思想在卢梭的整个思想中占有举足轻重的地位,而立法理论又是其中最为重要的组成部分。卢梭认为,法律是公意的体现,立法是为了实现正义,而立法是来自于人民的非凡人物,他们制定法律时应遵循自由与平等的原则。     

Misreading One's Sources: Charles Taylor's Rousseau

This article challenges Taylor's defense of community by criticizing his reading of Jean-Jacques Rousseau. Taylor, who adheres to the old charge that Rousseau is at bottom a totalitarian, neglects several points of resistance to the claims of the community that are present in Rousseau's political thought. Such points of resistance prove, on close examination, to be unavailable to Taylor. Taylor inadvertently offers a theoretical attack on individualism and a foundation for social tyranny more powerful than any to be found in Rousseau's thought.     

The Freedom of Desire: Hegel's Response to Rousseau on the Problem of Civil Society

The ever-growing body of literature on civil society can benefit from a return to the original theoretical articulation and defense of the concept in the work of G.W.F. Hegel. Specifically, this article suggests that Jean-Jacques Rousseau's influential critique of civil society remains unanswered and argues that Hegel responded with a sweeping and sympathetic institutional design that remains relevant today. Hegel agrees with Rousseau that commercial society aggravates the dissatisfaction of its members, and that educating individual desire through institutional design is necessary to solve this difficulty. However, modern states need not adopt Rousseau's extreme and impracticable solution. Hegel's concrete, market-based associations of civil society render desires satiable and elevate them to accord with the common good, while still maintaining the freedom and distinctness of a pluralistic modern society.     

Rousseau's Politic Argument in the Discourse on the Sciences and Arts

Rousseau's arguments often turn on a correct understanding of the relationship between cause and effect. We argue that the principal cause-effect argument of the Discourse is actually the opposite of the one Rousseau appears to posit in his work. Whereas he initially seems to argue that the sciences and arts corrupt morals, his ultimate argument is that the corruption of morals is the cause of the advancement of the sciences and arts and of their corrupting effects. Behind both moral corruption and the advancement of the sciences and arts lies a more remote cause: human pride and the unequal social and political conditions that result from pride and then foster it. Rousseau takes advantage of this complex causal relationship by simultaneously presenting an initial causal argument that gives his essay its paradoxical character and obscuring the ultimate causal argument of the work because of its implications as a critique of political authority and inequality.     

Rousseau on Fundamental Law

How can we understand Rousseau's use of entrenched fundamental law? Given that absolute sovereignty is of paramount importance to Rousseau, and given that he rejects the possibility of binding the future, fundamental law might be viewed as a paradoxical restraint on the sovereign. However, through a consideration of their substantive form, and of the procedural mechanisms of enactment and abrogation, these laws are shown to serve an 'enabling' purpose. For Rousseau, fundamental law does not constrain the sovereign will, but is constitutive of the sovereign or transforms its operation with respect to morality and justice. Fundamental law should be understood to enhance the capacity of the sovereign; this reading also explains the most familiar limitation that does not take the form of a fundamental law, the double-generality requirement.     

Rousseau's Critique of Representative Sovereignty: Principled or Pragmatic?

In the Social Contract, Jean‐Jacques Rousseau advanced an impassioned critique of representative sovereignty, yet it is often thought that his objections were merely pragmatic and that he did not consider the question of representation to be a matter of basic political right. This article maintains, to the contrary, that Rousseau did have a principled argument against representative sovereignty and elucidates the nature and bearing of that argument by situating it in response to Hobbesian accounts of representation. Rousseau's argument is shown to have far‐reaching implications, as it entails that the existence of representative sovereignty contravenes two principles central to the legitimacy of modern democratic states: the sovereignty of the people and the moral equality of the citizens.     

From conditions of equality to demands of justice: equal freedom,motivation and justification in Hobbes,Rousseau and Rawls

Equal freedom is the common starting point for most contractual theories of justice from Hobbes and Rousseau to Rawls. But while equal freedom defines a common starting point for these theories, this does not result in a general consensus on the conception of justice. On the contrary, different ways of conceptualizing the contractual starting point leads to different conceptions of the demands of justice. To fully understand the relationship between equal freedom and justice we therefore first need to explicate how and why the initial condition of equality is transformed into demands of justice. In this paper we discuss how this transformation takes place in the theories of Hobbes, Rousseau and Rawls, with particular emphasis on the vexed relationship between motivation and justification.     

Review Article: Isaiah Berlin's Contribution to Modern Political Theory

Three recent studies of Isaiah Berlin's moral and political thought stress the significance of value pluralism for his oeuvre. Whilst this emphasis enables us to dispense with some rather misleading characterizations of Berlin's liberalism, it is less apparent that his political thought can be successfully grounded within moral pluralism. Indeed his liberal beliefs sit rather more awkwardly within this ideological family than is usually assumed. Scholars seeking to revive Berlin's value pluralism in relation to contemporary challenges, such as multiculturalism, have not successfully demonstrated the utility of his thinking in relation to such problems, and have developed their arguments by downplaying the geo-political contexts which shaped his intellectual purposes. Yet his critics have neglected the fertility and range of his thought, aspects of which remain pertinent for those studying political thought in general and liberalism in particular.     

'The Form Most Eligible': Liberty in the Constitutional Convention

Although the framers of the U.S. Constitution agreed that thefirst principles stated by the Declaration of Independence werefundamental, they thought that the form which freedom shouldtake within the Constitution could not be discovered by a resortto natural rights (and thus declined to affix a bill of rightsto the Constitution). They rejected both the view that libertyis independence (whether of individuals or of states) and theview that liberty is equivalent to the rule of the people. Instead,they held a political view of freedom in which liberty is understoodas the scope men have for political action. The institutionsthey designed direct the use of liberty to the common good.In light of this analysis, the issue of whether the Constitution'sprovisions concerning slavery and its treatment of women areindications of an inadequate view of liberty can be answeredin the negative.     

On Hobbesian Resistance Theory

As many have observed, Hobbes's political theory contained elements of an inchoate resistance theory. The present article identifies those elements, and considers their significance for the general interpretation of Hobbes's thought. It is suggested that Hobbes's resistance theory provides evidence of his belief that the artificial commonwealth was built upon foundations of natural morality. If the sovereign ruler of any commonwealth infringed natural morality then she might well face the natural punishment of rebellion, even though in the artificial realm of civil law this rebellion could never be justified. In the light of these remarks, the interpretation of Hobbes given by Howard Warrender is reexamined. Although Warrender's conclusion that Hobbes grounded natural morality in the command of God cannot be sustained, it is shown that much else in Warrender's work remains valid. In particular, his contention that Hobbes was a genuine natural law thinker seems more defensible when Hobbesian resistance theory is properly understood.     

Sophocles'Antigone and the History of the Concept of Natural Law

This paper focuses on two related questions. The first of these is a general question. Where are the origins of the concept of natural law to be located in the history of political thought? The second is more specific. Sophocles puts into the mouth of the eponymous heroine of his Antigone an argument justifying her disobedience to an edict of her uncle Creon, who forbade her to bury her brother Polyneices. Does this argument involve an appeal to the concept of natural law? The paper takes issue with the claim, first made by Aristotle in his Rhetoric , that Sophocles' Antigone is indeed an early example of the application of the concept of natural law in political argument and debate. This interpretation of the political message of the Antigone is inconsistent with what we know about Sophocles' attitude towards the fundamental questions of Athenian politics in the classical era of Periclean democracy during the fifth century BC.     

Realism and Reform in Rousseau's Constitutional Projects for Poland and Corsica

Of all of the criticisms leveled against Rousseau's practical political writings few have been as pervasive as the charge of intentional utopianism. Over the years this charge has not gone entirely unanswered but, for the most part, the scholarly response has been to identify these works' realism solely in terms of Rousseau's desire to educate a corrupt Europe morally. In this essay, I reexamine the question of utopianism in Considérations sur le Gouvernement de Pologne and Projet pour la Corse to argue that the most egregiously fanciful or eccentric recommendations in these works actually demonstrate evidence of the philosopher's practicality and seriousness about constitutional reform in Poland and Corsica. To appreciate this realism though, readers must turn to Rousseau's opaque remarks about opinion's relationship to the laws in the Lettre à d'Alembert and other writings.     

The political and practical obstacles to the reform of the judiciary and the establishment of a rule of law in China

Is China’s “socialist rule by law” (社会主义法制) qualified to be called “rule of law” (法治) or a “thin rule of law” proposed by Randall Peeremboon, without abolishing the political supremacy of the Chinese Communist Party and the establishment of an independent judiciary? Since the mid-1990s, the Chinese legal system and its judiciary have gone through reforms and on the whole modernized. However, the Chinese judiciary still faces many problems, and among them the lack of professional jurists, corruption and local protectionism appear as crucial ones. The current political and institutional arrangements and lack of freedom of the press and freedom of association clearly intensify these problems. “Rule of law” (法治) or “rule by law” (法制) in China is still more often interpreted in the light of the respective political, bureaucratic and economic powers of the parties involved than according to principles of law or equity. The modernization of the legal system will continue, but the political translation of the legal demands of society and the international community will take time to materialize. In the meantime, risks, setbacks and difficulties will continue to prevent China from establishing a truly independent judiciary and what is universally called a rule of law.     

Was ist Rechtspopulismus?

When a new type of party labelled ?right-wing populist“ by political scientists and journalists, arrived on the political scene in Western Europe thirty years ago, many observers thought that it would only be a short-lived manifestation of political protest. Today these parties are present in almost all European countries. Building on an introductory definition, the contribution will assess the root causes of right-wing populism, its ideological and programmatic features, its organizational traits and ways of adressing voters as well as its effects on party systems, governmental policies and the democracy in general. Concluding thoughts offer a number of recommendations how the challengers—which will in all likelihood not disappear in the near future—could be politically contained.     

Rousseaus Stellung zum utopischen Diskurs der Neuzeit

In the history of political ideas the position of Rousseau’s political theory is controversial. Many historians identify him with the utopian tradition since Thomas More stressed the collective elements in his writings. In contrast to this interpretation it is a widespread thesis that the author of the “Contrat social” must be considered as a representative of the individualistic natural rights. The following study starts with this issue. The authors show that the contractual dimension is predominant in Rousseau’s thinking but it is modified by utopian elements. So Rousseau’s “mixed paradigm” is characteristic for the second part of the 18th century when contractual realism and utopian fiction merged in the dawn of the French Revolution.     

Hannah Arendt on Kant, Truth and Politics

Hannah Arendt is right to give prominence to Kant's Critique of Judgment—for that work contains Kant's fullest treatment of 'ends' and purposes, and Kantian politics (embracing universal republicanism and eternal peace) is meant to be a 'legal' realization of moral ends (when 'good will' alone is too weak to produce what ought to be). But Arendt is wrong to try to extract a 'new' Kantian politics from Judgment's aesthetic ideas: Kantian politics is already 'there', and need not be squeezed out of his theory of art. She has chosen the right work, but given it a bizarre reading.     

Is the government exhausting its powers? An empirical examination of eminent domain exercises in New York City pre- and post-Kelo

A controversial U.S. Supreme Court decision in Kelo v. City of New London (2005) which did not limit the use of state's eminent domain powers, led to an unprecedented legislative reaction by almost all 50 states. Of all, New York State stands out as one of the single states not to respond with a legislative amendment. In this study, I ask whether the state's predation was greater in the years following these legal and political developments, in light of the freedom which was granted to local politicians by both the Supreme Court and the state's legislators. The article hypothesizes that contrary to common perceptions, judicial decisions impact local government actions even when no limits on the use of powers are being posed. I use rigorous statistics and scrupulously defined data to expand scholarly understanding of the aftermath of the judicial decision in Kelo. The main finding is that the decision has in fact affected political behavior, but in the opposite direction than commonly expected: politicians in New York City acted consistently with public opinion, which was hostile too Kelo, not by changing the law, but by changing their practice. Studying all known taking exercises in New York City between 1991 and 2019, the paper finds no increase in the number of development projects involving condemnations after 2005. In fact, the probability of a taking for economic development or urban renewal dropped by 90%. The use of eminent domain for such projects declined even when both state and federal courts refrain from interposing any actual limit on its use. The paper lends qualified support to an alternative assertion that takings decisions by government officials are largely shaped by planning and political needs and that officials are sensitive to revealed public preferences even when there is no constitutional or legal impediment on their exercise of power.     

Democratic and constitutionalist elements in Khomeini’s Unveiling of Secrets and Islamic Government

This is a study of Khomeini’s two main pre-revolutionary political works: one, Islamic Government, in which he urges his audience to accept that Islam is a political religion and jurisprudents of Islamic law have a crucial role in government; and a second, The Unveiling of Secrets, of which only short excerpts have been translated into English and which has received scant attention by scholars outside of Iran. This latter work is crucial to study because in this work, he elaborates his view on democratic and constitutionalist principles, subjects he had treated only vaguely and briefly in Islamic Government. Contrary to much of the secondary literature produced on Khomeini, which claims that Khomeini’s theory is simply a theory of guardianship, antithetical to participatory government, the article claims that in The Unveiling of Secrets, and (though more ambiguously) in Islamic Government, Khomeini appeals to democratic and constitutionalist principles to argue that the views of common citizens, and not just experts in Islamic law, must be heeded by an Islamic government. Recognizing the complexities and ambiguities of Khomeini’s thought both in his earlier and later works allows us to understand and engage in dialogue with the scholars who inherit and critique his ideas today.